Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001782
First-tier Tribunal No: PA/51081/2023
LP/01075/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

6th July 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE BURGHER

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MD SAJIB HUSSEN
Respondent

Representation:
For the Appellant: Mr P Richardson (Counsel), Law Valley Solicitors
For the Respondent: Mr K Ojo, Senior Presenting Officer

Heard at Field House by CVP on 18 June 2026

DECISION AND REASONS
Background
1. Although the appeal was brought by the Secretary of State for the Home Department (“SSHD”) hereinafter, for clarity, the parties are described as they were before the First-tier Tribunal, that is MD Sajib Hussen as the Appellant and SSHD as the Respondent.
2. The Appellant is a national of Bangladesh, born on 10 December 1991. He entered the United Kingdom on 29 May 2012 with leave as a Tier 4 student. Following curtailment of that leave, the Appellant made further applications without success. On 14 July 2018 he made an asylum claim. That was refused by the Respondent. The Appellant appealed to the First-tier Tribunal. By a decision promulgated on 30 December 2025, First-tier Tribunal Judge Stedman (‘the Judge’) dismissed the protection claim but allowed the appeal on Article 8 ECHR grounds.
3. The Secretary of State sought permission to appeal. Permission was granted by First Tier Tribunal Beach on 7 April 2026.
Grounds of Appeal
4. The SSHD’s grounds contend that the Judge failed to give adequate reasons for concluding that the Appellant’s removal would be disproportionate.
Appeal to the Upper Tribunal
5. On behalf of the SSHD, Mr Ojo submits that the Judge’s reasoning has material inadequacies. In particular, it is submitted that the Judge failed to explain:
5.1 why the public interest in immigration control, expressly identified at paragraph [22], was outweighed;
5.2 why the family could not reasonably continue their family life in Bangladesh, applying the stringent ‘insurmountable obstacles’ test requiring very significant difficulties, described in Agyarko v Secretary of State [2017] UKSC 11 at [43];
5.3 how the child's best interests were assessed in accordance with EV (Philippines) & v SSHD [2014] EWCA Civ 874 at [24] and [34]. Specifically, there was no explanation or reasoning determining the relative strength of the factors which make it in their best interests to remain here and there was a failure to take account of any factors that point the other way, particularly given that the child was not a "qualifying child";
5.4 why delay in determining the asylum application was given weight given the Appellant’s precarious situation, without analysis consistent with EB Kosovo v SSHD [2008] UKHL 41at [13]-[16].
6. On behalf of the Appellant, Mr Richardson relied on the Rule 24 response dated 4 June 2026. It is submitted that the appeal is no more than a disagreement with the outcome and does not disclose a material error of law.
7. Mr Richardson relied on R (Iran) v SSHD [2005] EWCA Civ 982, as reflected at paragraph [2] of the Rule 24 response, and submitted that reasons need not be elaborate, provided the losing party can understand why they have lost. Further, reliance was placed upon Budhathoki (reasons for decisions) [2014] UKUT 00341 (IAC) at [3], which provides that a Judge need only identify and resolve the key issues.
8. Mr Richardson submitted that that the Judge expressly recognised the public interest and precariousness at paragraph [22], considered the family circumstances at [23], relocation at [24], the child's welfare at [25], and conducted a balancing exercise at [26].
9. As to delay, Mr Richardson is submitted that the Judge's reference to EB (Kosovo) at [22], together with the further reference at [24], demonstrates that the principles at [13]-[16] were applied in substance. It was submitted that the Judge was entitled to give weight to the existence of family life formed during a period of delay, which is consistent with the principles in EB (Kosovo).
Legal Framework
10. The Upper Tribunal may set aside the decision of the First-tier Tribunal only if it involved the making of an error of law. The principles governing reasons challenges are well established:
10.1 In English v Emery Reimbold English & Strick Ltd [2002] EWCA Civ 605, the Court of Appeal held that reasons must enable the losing party to understand why they have lost and that reasons need not be elaborate, provided the basis of the decision is clear;
10.2 In Budhathoki at [3], the Upper Tribunal held that a Judge need only deal with the principal controversies and the Appellate Tribunal should adopt a realistic and benevolent reading and avoid excessive legalism.
10.3 The Upper Tribunal must not interfere merely because it would have reached a different conclusion, even if aspects of the reasoning can be criticised (Laci v SSHD [2021] EWCA Civ 769; Yalcin v SSHD [2024] EWCA Civ 74).
11. In Article 8 cases:
11.1 The Tribunal must take account of the public interest under sections 117A-117D of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act);
11.2 In determining whether the need for immigration control outweighs the best interests of the children, it is necessary to determine the relative strength of the factors which make it in their best interests to remain here; and also to take account of any factors that point the other way EV (Philippines) at [34]);
11.3 In Agyarko at [43] “insurmountable obstacles” to relocation appear to be understood in a practical and realistic sense, rather than as referring solely to obstacles which make it literally impossible for the family to live together in the country of origin of the non-national concerned.
11.4 In EB (Kosovo) [13]–[16], the House of Lords rejected the contention that delay fixes the decision date or creates an entitlement. However, delay may be relevant in three respects: (i) it may allow the development of stronger private and family ties; (ii) it may diminish the sense of precariousness and strengthen expectations of remaining; and (iii) it may reduce the weight of the public interest where it reflects systemic dysfunction. The weight to be given to such delay is fact-sensitive and a matter for the Tribunal.

Analysis and Conclusions
12. The Article 8 analysis undertaken by the Judge is contained in paragraphs [22]-[26] of the decision.
Public interest
13. At paragraph [22], the Judge expressly identifies the "strong public interest in immigration control" and states that the Appellant's private and family life attracts "limited weight" by reason of the Appellant’s precarious status. This demonstrates that there was clear engagement with section 117B(1), (4) and (5) of the 2002 Act.
14. The Judge further states that he gives some weight to the Appellant's residence but recognises that such weight is ‘limited’ due to precariousness. Whilst clumsily expressed, I conclude that read fairly and in context, that reflects the correct application of the statutory requirement to give little weight. There is therefore no material error of law in this regard.
Insurmountable obstacles
15. When considering the approach taken by the Judge to insurmountable obstacles and relocation, they address relocation at paragraph [24]. They conclude that family life could not reasonably be continued in Bangladesh and that relocation would cause "significant prejudice" to the wife given her lawful status, taking into account the length of time the family has lived together in this country, the Appellant’s lawful entry as a student, the SSHDs delay, and the fact that the Appellant would be unable to meet the requirements for entry clearance.
16. The SSHD submits that this reasoning does not satisfy the stringent standard articulated in Agyarko at [43], namely that there must be "very significant difficulties". The Judge does not expressly cite Agyarko or use the phrase "insurmountable obstacles". However, applying R (Iran), I do not conclude that this omission demonstrates that the Judge did not apply the correct test. The Judge’s reasoning discloses why they reached their conclusion in this regard. The Judge identifies the material factual considerations, including the Appellant’s wife’s lawful status in the United Kingdom and the practical consequences of relocation. Whilst the Judge’s reasoning is brief, it is intelligible and their finding is that relocation would involve significant practical hardship. The criticism advanced by the SSHD is properly characterised as a challenge to the sufficiency or strength of those reasons, rather than their absence. In these circumstances I do not conclude that there is a material error of law.
Child’s best interests
17. When considering the status of the child and their best interests, it is accepted that the child is not a "qualifying child" for the purposes of section 117B(6) of the 2002 Act. This means that the statutory disapplication of the public interest does not arise but it does not mean that the child's interests are irrelevant. The Judge does not rely on section 117B(6) and at paragraph [22] expressly maintains that the public interest in immigration control remains strong. The SSHD submits that the Judge failed to apply the structured approach in EV (Philippines) at [34].
18. At paragraph [25], the Judge finds that separation from the Appellant would be detrimental to the child's welfare. That finding reflects the principle identified in EV (Philippines) at [34], that a child's best interests is a central consideration and must be assessed in the real-world context of parental immigration status.
19. Considering and applying Budhathoki, I concluded that the Judge was not required to set out each factor in full. The question is whether the Judge’s reasoning discloses that the child's welfare was properly considered by determining the relative strength of the factors which make it in their best interests to remain here. The Judge identified the existence of a young child [23] recognised the family unit, and assessed the consequences of separation [25]). I conclude that is sufficient and provides the necessary reasoning. Therefore, I do not conclude that there is a material error in the Judge’s reasoning in this regard.
Delay
20. When considering delay, the SSHD submits that the Judge failed to apply the analysis in EB (Kosovo) at [13]-[16]. The SSHD submitted that the delay in determining the Appellant’s asylum claim was not of a duration capable of attracting weight. The SSHD stated that the chronology is material. The Appellant claimed asylum in July 2018. The SSHD’s decision was made on 7 February 2023, a period of approximately four years and seven months. During that period, the Appellant’s family life developed: he met his partner in or around early 2022, they married in March 2022, and their child was born on 10 December 2022. Thus, the entirety of the Appellant’s family life arose during the latter phase of the period of delay.
21. The Judge states at paragraph [22] that he gives "some weight" to the SSHDs delay in determining the asylum in accordance with EB (Kosovo). The Judge reverts to delay at paragraph [24], identifying it in the factual matrix. These paragraphs identify possible effects of delay but there is no requirement that each be outline in detailed.
22. Applying EB (Kosovo) there is no fixed period after which delay becomes material, the Tribunal must assess its relevance fact-sensitively. The SSHDs submission that the delay was insufficiently lengthy to attract weight does not disclose an error of law. At its highest, it is a submission as to weight. The Judge expressly recognised the delay at paragraph [22] and treated it as relevant within the proportionality exercise, returning to it in paragraph [24]. In doing so, the Judge was entitled to consider that the passage of time had permitted the Appellant to form and consolidate family life, even if that occurred at a relatively late stage within the period of delay.
23. Further, the second aspect identified in EB (Kosovo) [15] that the potential erosion of a sense of impermanence was capable of arising over a period measured in years rather than months. Whether that dynamic was engaged on the facts was a matter for the Judge. The Upper Tribunal is not concerned with whether it would have given that factor little or no weight, but whether the Judge was entitled to give it some weight.
24. In these circumstances, the challenge to the Judge’s treatment of delay amounts to a disagreement with the evaluative assessment. It does not disclose a misdirection, failure to take into account a material matter, or irrationality. Accordingly, I do not conclude that there is material error of law arises from the weight accorded to delay.
Proportionality
25. When considering proportionality, the Judge concludes that the case is "finely balanced" but that removal would be disproportionate. That conclusion reflects the Judge's evaluation of competing factors. Following Laci and Yalcin, such evaluative judgments fall within the remit of the Judge and the Upper Tribunal may not interfere simply because it would have struck the balance differently.
26. When the decision is read holistically, and in line with the benevolent approach indicated by R (Iran), I conclude that the Judge:
26.1 identified the relevant legal framework;
26.2 addressed the central issues: public interest, precariousness, relocation, child welfare, and delay;
26.3 gave reasons for each conclusion, albeit concisely;
26.4 gave reasons permitting the parties to understand why the appeal succeeded.
27. In reality, the Respondent's submissions establish that the reasoning could have been fuller and more detailed, and the challenge is in substance a disagreement with the evaluative conclusion reached by the Judge. However, they do not establish that the Judge failed to give adequate reasons or misdirected themselves in law. This does not disclose a material error of law and the appeal is dismissed.
Notice of Decision
The Secretary of State's appeal is dismissed.
The decision of the First-tier Tribunal did not involve the making of an error of law.
The decision of the First-tier Tribunal shall stand undisturbed.

Benjimin Burgher

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

27 June 2026